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Lopez v. Astrue

April 2, 2009

CARMEN LOPEZ, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMM. SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Stephen J. Hillman United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

I. PROCEEDINGS

Plaintiff Carmen Lopez filed an application for Title II Social Security Disability insurance benefits (DIB) on March 26, 2003. Also on March 26, 2003, she submitted a claim for Supplemental Security Income payments. The claims were denied initially and on reconsideration. A request for hearing was timely filed.

A hearing before an Administrative Law Judge (ALJ) was held on April 5, 2005. Plaintiff appeared and testified through a professional Spanish interpreter.

Following receipt of a Decision denying benefits, plaintiff sought review to the Appeals Council. The Appeals Council declined review on April 5, 2006. A civil action followed, and on March 15, 2007, the District Court reversed and remanded the matter for further proceedings. Specifically, the Court found that the ALJ's credibility findings were not based on clear and convincing reasons.

The Appeals Council remanded the case to the same ALJ, and a second hearing was held on October 3, 2007. Plaintiff appeared and testified through a professional Spanish interpreter. The ALJ called upon Dr. Joseph E. Jensen, an impartial medical expert, to testify at this hearing. On November 29, 2007, the ALJ again denied benefits, reasserting some of the same reasoning as that rejected by the District Court in the first civil action. On January 26, 2008, the Appeals Council declined to assume jurisdiction. A second civil action followed, which is the matter at hand.

The parties have consented to the jurisdiction of the magistrate judge. Plaintiff and Defendant have filed their pleadings. Plaintiff alleges that the ALJ erred by incorrectly finding her not credible. Second, Plaintiff alleges that the ALJ rejected the testimony of Dr. Jensen, the medical expert, without sufficient legal reason. Third, Plaintiff alleges that based on the ALJ's errors, the appropriate remedy is reversal and award of benefits.

II. DISCUSSION

A. THE ALJ INCORRECTLY FOUND PLAINTIFF NOT CREDIBLE AS TO HER ALLEGED PAIN

In the present case, defendant admits that the ALJ committed two errors in his second decision regarding the assessment of plaintiff's credibility. First, defendant admits that the ALJ erred by again faulting the plaintiff for failing to consider a second back surgery. [AR 860-61]

As was clearly stated in the first District Court decision, the ALJ's assessment of credibility consists of two stages of analysis: the Cotton analysis and an analysis, of the credibility of the claimant's testimony regarding the severity of her symptoms. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1995). The threshold test developed in Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986), requires the claimant to (1) produce objective medical evidence of an impairment of impairments; and (2) show that the impairment or combination of impairments could reasonably be expected to (not that it did in fact) produce some degree of symptoms. The Cotton standard was reaffirmed in Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc). Further, Bunnell held that an adjudicator who finds a claimant's allegation of severity of pain to be not credible must make specific findings which support this conclusion.

If a claimant meets the Cotton test, and there is no evidence of malingering, the ALJ may reject the claimant's testimony on credibility grounds only by offering specific, clear and convincing reasons for doing so. See Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993).

Applying the Cotton test, as was previously found by this Court, plaintiff asserted that she became disabled due to hypertension, lower back pain, pain in the lower extremities, diverticulitis, inflamed liver, heart problems, and mental difficulties. [AR 15] The ALJ found that plaintiff's lumbar spine injury status post fusion surgery is considered "severe". [AR 25]

Plaintiff's combination of impairments could reasonably be expected to cause pain. Plaintiff had back surgery in 2000. [AR 15] Plaintiff reported that she had been taking 800 mgs of Ibuprofen to alleviate her pain. [AR 23, 115] For additional pain relief, plaintiff used pain gel, ...


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